~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Treatment of Cyberbullying in Kenya’s new Computer and Cybercrimes Act

Cyberbullying in Kenya is an issue that can no longer be ignored. In the digital age, some argue that not enough attention is given to this issue, until social media users who are victims of cyberbulling end up hurting themselves or even taking their own lives. In the fight against all forms of cybercrime including cyber-bullying, Kenya has been working on the Computer and Cybercrimes Bill of 2016 which was enacted in April 2017. An overview of the Bill was published previously on this blog here.

Section 14 of the Act criminalises cyberstalking and cyberbullying. These offences attract a penalty of ten years imprisonment and or a fine of twenty million shillings. Cyberstalking and cyberbullying are described as one under the Act in the same section as if they are one in the same thing. They are not defined individually and this could be problematic because there is no certainty when trying to decide if a person’s actions fall under cyberbullying or cyberstalking. It is opined that this definitional problem may be a recipe for disaster in the sense that the exact nature of cyberbullying and the scope of this offence is not set out in the law.

A well known example may suffice to illustrate the reality of cyber bullying in Kenya. Jimmy Gait (featured in the video above) is a popular Kenyan gospel artist. It would seem that he has not had the best welcoming party into the industry. His internet audience has not been subtle in stating their views about his songs. His lyrics are often criticized and mocked. He expressed how he felt low and depressed because of the abuses and critics on social media. He even cried on national TV which then caused another storm of insults and ridicule. Whereas the Act provides as follows:

“A person who, individually or with other persons, willfully and repeatedly communicates, either directly or indirectly, with another person or anyone known to that person, commits an offence, if they know or ought to know that their conduct—
(a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or
(b) detrimentally affects that person.”

In the case of A M v Premier Academy [2017] eKLR, the petitioner, acting on behalf of his minor daughter, claimed that the school had suspended his child without fair administrative action. It is alleged the student in question bullied other students both offline and online but when the school took action to suspend her, she filed a suit against the school claiming not being given fair administrative action.

The Act simply states that any person sharing such information that can be detrimental to another is guilty. This means that the means used to share these things does not matter. So twitter cannot be blamed if its users are sharing the insults and bullying comments about Jimmy Gait. Social Media is not an individual, it has users who are responsible for anything they post on these platforms. In the Premier Academy case, I would think that the school should not be directly blamed for the students bullying each other. All the school can do is come up with measures to avoid such situations.

**Rosine Mumanya is a Bachelor of Laws student at Strathmore University.